46 W. Va. 339 | W. Va. | 1899
“The petition of John W. Harris, attorney, E. L. Beard, and R. W. Hill respectfully represents that they are aggrieved by a decree of the circuit court of Green-brier County rendered on the 24th day of June, 1897, in a chancery cause therein pending, in which L. J. William», and J. C. Patterson, trustees, are plaintiffs,, and W. H.
This is an abstract from the petition for appeal, showing the matter of controversy. The circuit court’s decree in relation thereto is as follows: “It appearing to the court from said report that the following creditors of W-. EL Overholt received from him certain securities as collateral to secure the payment of their debts before the general assignmnt made on the 3d day of July, 1896, the court is of opinion that said creditors are n:ot entitled to participate in the distribution of the proceeds now in the hands of said trustees until said collateral securities have been collected,' and applied fro tanto to the payment of their respective debts, or until said securities have been ascertained to be worthless; and, in estimating the amount which said creditors thus protected are entitled to receive out of the general fund, the calculation shall be made upon the basis of what remains due them and unpaid after applying their said collaterals. But it not appearing at this time what is the value of said collaterals, and many of them not yet being due and payable by the parties against whom they are held, therefore, in order that their rights may be fully protected, said trustees are directed to make the calculation for distribution upon the hypothesis that none of said collateral can be realized upon, and to retain for said creditors the amount thus ascertained to belong to them ,to be paid .by them when their said collateral securities shall have been ascertained to be worthless; and in the event said collateral shall be realized upon, and then holders thereof shall not be entitled to the whole of said amount thus retained, and after applying the amounts so realized, fro tanta to the payment of the debt of the holder of such collateral, the funds shall be again prorated upon the basis of the balance, if any, thus found to be due them, and, in the event the amount thus realized upon said collateral is sufficient to pay the debt of the holder thereof in full, then such creditor shall not receive anything from the trust fund, and, if the amount realized upon said col
The law governing the question involved is well stated in the opinion of G-ray, J., in the case of People v. E. Remington & Sons, 121 N. Y. 336, (24 N. E. 795), as. follows: “In this country we find that rule more generally prevailing which allows the creditor holding- securities to prove and receive his dividend on the whole debt. It is asserted in Judae Story’s work on Equity Jurisprudence (section 524), and in the following cases: In re Bates, 118 Ill. 524, (9 N. E. 257); West v. Bank, 19 Vt. 403; Moses v. Ranlet, 2 N. H. 488; Findley v. Hosmer, 2 Conn. 350; Logan v. Anderson, 18 B. Mont. 114. In Re Patton's Appeal., 45 Pa. St. 151, it was held, in relation to an as-signement made for creditors, that the unsecured creditor has no right to the benefit of the securities held by another creditor until the other’s whole debt was paid. In Allen
Modified and Affirmed.